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Jensen v Queensland Building and Construction Commission[2019] QCATA 11

Jensen v Queensland Building and Construction Commission[2019] QCATA 11

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jensen v Queensland Building and Construction Commission [2019] QCATA 11

PARTIES:

TIMOTHY PETER JENSEN

(applicant)

 

v

 

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL241 - 17

ORIGINATING
APPLICATION NO/S:

GAR091-16

MATTER TYPE:

Appeals

DELIVERED ON:

01 February 2019

HEARING DATE:

22 October 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Deane

ORDERS:

The application for leave to appeal and appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – PARTICULAR GROUNDS – MISCELLANEOUS GROUNDS ON WHICH NEW TRIAL GRANTED OR REFUSED- withdrawal of application to review – further referral on same facts or circumstances – where application to review a decision withdrawn – where leave to make a further application to review the decision under s 46(3) of the QCAT Act refused – where application for an extension of time under s 61 of the QCAT Act to make the further application refused – where decision involved cancellation of a licence – where a subsequent amendment of the governing legislation impacted on the circumstances in which a licence is cancelled

Acts Interpretation Act 1954 (Qld), s 20(2)(c)

Professional Engineers and Other Legislation Amendment Act 2014 (Qld) s 60

Queensland Building and Construction Commission 1991 (Qld), s 31(1), s 56AC, s 56AD, s 56AE, s 56AF, s 56AH, s 58(1), s 61

Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld), s 59

Queensland Building Services Authority Amendment Act 2013 (Qld) s 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 24(2), s 33(3), s 46(3), s 49(4), s 61,

Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 25.06

Uniform Procedure Rules 1999 (Qld), r 310 Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 74(2)(d)

Chandra v Queensland Building and Construction Commission [2014] QCA 335, distinguished

Coppens v Water Wise Design Pty Ltd [2014] QCATA 309, applied

Crime and Misconduct Commission v Chapman [2011] QCAT 229, applied

D’Arro v Queensland Building and Construction Commission [2017] QCA 90, distinguished

Davies v Victoria Police (Health and Privacy) [2012] VCAT 1951 (18 December 2012), applied

Hoskin v Department of Education (General) [2005] VCAT 2921 (12 September 2015), considered Jensen v Queensland Building and Construction Commission [2017] QCAT 232, considered

Minister for Aboriginal Affairs v Peko-Wallsend Ltd(1986) 162 CLR 24, applied

Paddon v Queensland Building and Construction Commission [2018] QCAT 100, applied

Peters v Southern Health and Batten [2002] VCAT 120 (20 February 2002), applied

APPEARANCES
& REPRESENTATION:

Applicant:

Mr C Matthews of Counsel, instructed by Construct Law Group Pty Ltd

Respondent:

Mr S Forrest of Counsel

REASONS FOR DECISION

  1. [1]
    The applicant held a builder’s licence issued by the, then, Queensland Building Services Authority.[1] On 16 September 2009, following the winding up of a company of which he was a director, the applicant was given notice that he was considered to be an ‘excluded individual’ pursuant to s 56AC and 56AF of the Queensland Building and Construction Commission Act 1991 (‘QBCC Act’).[2] On 21 March 2011, following his entering into bankruptcy, the applicant was given notice that he was considered to be an excluded individual also in relation to that second ‘relevant event’.
  1. [2]
    On 02 and 03 June 2011 his applications to become a ‘permitted individual’ in relation to those two events were refused.[3] In those circumstances, by s 56AF of the QBCC Act at that time, the QBCC was obliged to cancel the applicants licence. In the event of there being two ‘relevant events’, the person became a ‘permanently excluded individual’.[4] Otherwise, the exclusion was for 5 years.[5]
  2. [3]
    On 04 July 2011 the applicant commenced proceedings with the Queensland Civil Administrative Tribunal (‘QCAT’) to review those decisions. By the terms of s 56AF of the QBCC Act at that time, cancellation did not take effect while the matter was subject to review before the Tribunal. On 05 November 2012 the applicant withdrew those applications. On 01 February 2013, the Queensland Building Services Authority cancelled his builder’s licence pursuant to the, then, s 56AF(b)(ii)(B) QBCC Act.
  3. [4]
    On 14 April 2016, the applicant filed a fresh application to review the 02 June 2011 decision of the QBCC.[6] As a preliminary step required by s 46(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the applicant sought leave to make that further application, although subsequently contended that such leave was not required. Pursuant to s 61 of the QCAT Act, an application was also made for an extension of time to file the application to review. In considering those matters, the Tribunal took the application to review as being an application to review both the decision not to categorise the applicant as a permitted individual as well as the separate determination under s 56AF of the QBCC Act that the applicant is an ‘excluded individual’.[7]
  4. [5]
    The reason for the additional ground of review rests on a change in the legislation arising under the Professional Engineers and Other Legislation Amendment Act 2014 (Qld) (‘PEOLA Act’). Under the PEOLA Act, s 56AC of the QBCC Act was amended so that the two ‘relevant events’ attributed to the applicant might be treated as one event if both events flow from one set of circumstances,[8] in which case the applicant’s exclusion might not be permanent but for a term of 3 years only.
  1. [6]
    In a decision made on 22 June 2017, the Tribunal refused the applications for leave to file a further application and to extend time.[9] The consideration and determination of those interlocutory applications by the Tribunal is the subject of the present application for leave to appeal or appeal.
  2. [7]
    In refusing the application for leave under to s 46(3) QCAT Act, the learned Member took into account the lengthy delay, the explanation given for that delay, the purpose of the prescribed 28 day time limit, prejudice to the respondent, and that the applicant wished to take advantage of the legislative change, noted above, which was not available to him at the time of his original application. In refusing the application to extend time pursuant to s 61 QCAT Act, detailed consideration was given to the matters outlined in Crime and Misconduct Commission v Chapman[10] as being relevant to an application for extension of time: the explanation for the delay, the strength of the applicant’s case, prejudice, the length of the delay and the interests of justice.
  3. [8]
    The applicant’s grounds of appeal may be distilled as follows:
    1. The Tribunal misdirected itself as to the process and the law (Grounds 1, 13, 16 and 18).
    2. There was no evidence to support specified findings or no adequate reasons were given for those findings (Grounds 2, 4, 7, 9, 15 and 20).
    3. The Tribunal took account of irrelevant considerations (Grounds 14 and 17).
    4. The Tribunal failed to take account of relevant considerations and evidence (Grounds 3, 6, 10, 11, 12, 19 and 20).
    5. The Tribunal failed to provide procedural fairness (Grounds 5 and 8). There is overlap as between a number of those grounds.
  4. [9]
    Provisions dealing with the making of a further application relating to the same facts or circumstances are set out at s 46 of the QCAT Act. Section 46(3) of the QCAT Act provides:

If an applicant withdraws an application or referral, the applicant can not make a further application or referral, or request, require or otherwise seek a further referral, relating to the same facts or circumstances without leave of the tribunal.

Section 61(1)(a) of the QCAT Act provides that the tribunal may, by order:

extend a time limit fixed for the start of a proceeding by this Act or an enabling Act

  1. [10]
    As noted by the learned Member,[11] there is no guidance as to the circumstances in which leave should be given under s 46(3) of the QCAT Act and, unlike s 49(4) of the QCAT Act, there is no reference to providing an extension of time. However, in most instances an extension of time will be required, given that generally the time for filing an application for review is 28 days.[12] Even if s 46(3) of the QCAT Act does not import an implied power to extend time in those circumstances, it remains that reliance may be placed on s 61(1)(a) of the QCAT Act.
  1. [11]
    As to the circumstances in which leave should be given, in relation to an equivalent provision under the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) it has been said that leave should be given unless the reason for seeking leave is clearly frivolous or vexatious.[13] However, that conclusion was inferred from a quite different provision under rule 25.06 of the Victorian Supreme Court Rules, which provided that a withdrawal is not a bar to subsequent proceedings unless the order granting leave to withdraw provided otherwise.[14] The Victorian Supreme Court Rules also provided that if a withdrawing party were ordered to pay costs, any further proceeding may be stayed until those costs were paid. It was thereby inferred that one purpose of requiring leave under the VCAT Act is to allow other parties to prevent the applicant from avoiding the effect of any orders made at the time of withdrawal, particularly costs orders. It was also inferred from rule 25.06 that a party who has withdrawn has not lost by that withdrawal any right to have the matter considered on its merits.
  2. [12]
    However, unlike the Victorian Supreme Court Rules, s 46(3) of the QCAT Act, as with the equivalent provision under the VCAT Act, provides a specific bar to a further application relating to the same facts or circumstances without leave of the Tribunal. That might be a reflection of the nature of the QCAT jurisdiction, including the desirability of certainty and finality in relation to decisions impacting public bodies, the strict time limits for bringing applications and the object of having the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.[15] On that basis, it would seem that considerations such as the merits of the application, the reasons for the initial withdrawal, the reasons for bringing the fresh application, the lapse of time and the issue of prejudice are relevant to the exercise of what appears to be a broad discretion as to whether to grant leave.
  1. [13]
    Those considerations are not altogether dissimilar to the factors to be considered in exercising the discretion to grant an extension of time: whether there has been a reasonable explanation for the delay, the strength of the applicant’s case, prejudice to adverse parties, the length of the delay, and, overall, whether it is in the interests of justice to grant an extension.[16]
  2. [14]
    The grounds of appeal and leave for appeal should be looked at in that context. As a starting point, it is clear from both the grounds of appeal, for leave to appeal and the submissions of the applicant that a central theme is the perceived high chances of success in the application to review, because of the changes brought in by the legislative amendments noted above.

The amendments to the QBCC Act

  1. [15]
    As noted above, s 56AC of the QBCC Act was amended effective from 2014 so that the two ‘relevant events’ attributed to the applicant might now be treated as one event. The amended s 56AC(5) of the QBCC Act provides:

An excluded individual for a relevant event does not also become an excluded individual for another relevant event if the commission is satisfied that both events are consequences flowing from what is, in substance, the one set of circumstances.

It was the applicant’s submission that the amended legislation should apply in his case and, in that event, his entering into bankruptcy would not have triggered the notice of a second ‘relevant event’ because it flowed from the same circumstances which led to the winding up of the company of which he was a director.

  1. [16]
    However, there is a question of whether those amendments apply to the present application to review should leave be given under s 46(3) and time for the making of the application extended.
  2. [17]
    It is central to the applicant’s case that they do apply and that, consequently, he has strong prospects of success with the present application to review.[17] The applicant relies on the decision of the Queensland Court of Appeal in D’Arro v QBCC.[18]
  3. [18]
    However, in our view the decision in D’Arro does not support the applicant’s case. In considering the decision in D’Arro, the starting point is s 20(2)(c) of the Acts Interpretation Act 1954 (Qld), which provides:

The repeal or amendment of an Act does not –

(c)  affect a right, privilege or liability acquired, accrued or incurred under the Act;

  1. [19]
    In D’Arro, liquidators were appointed in relation to four companies associated with the applicant and subsequently the applicant was himself made bankrupt. The QBCC determined that the applicant was an excluded individual for the appointment of liquidators for the four companies and for his bankruptcy. An application to be categorised as a permitted individual for each of those five relevant events was refused. The applicant applied to QCAT for review of those decisions. Ultimately, the review proceeded only in relation to the decision that the applicant was an excluded individual in relation to one of the four companies and the decision to refuse to categorise him as a permitted individual for the bankruptcy.[19]
  2. [20]
    The Tribunal affirmed the decisions of QBCC. The applicant appealed to the Appeal Tribunal and from there to the Court of Appeal. In issue before the Court of Appeal was the decision of the Appeal Tribunal, as with the Tribunal, not to apply the amendments to the QBCC Act, which came into effect after the time of the Tribunal hearing but before the Tribunal handed down its decision. The decision of the Appeal Tribunal rested on the conclusion that to extend the legislative amendments to the case at hand would be to give the legislation retrospective effect.[20]span>
  1. [21]
    The Court of Appeal upheld the appeal. In essence, the Court of Appeal held that retrospectivity did not arise, as the applicant had incurred no ‘liability’ prior to the Tribunal hearing, so that s 20(2) of the Acts Interpretation Act 1954 (Qld) did not apply. That is because the fact of determining that a person is an excluded individual or is not a permitted individual does not in itself create a relevant liability. After referring to sections 31(1), 56AC, 56AE, 56AF, 56AH and 61 of the QBCC Act, Fraser JA, with whom Philippides JA and Mullins J agreed, stated:[21]

The circumstance of an evaluative decision that an individual is an excluded individual is required before those sections operate in a way that affects the individual’s licence status, together with the possibility that before the individual’s licence status is affected the individual may be categorised under sections 56AD(8) and (9) as a permitted individual rather than an excluded individual, make it difficult to accept the respondent’s argument that s 56AC(3) and s 56AC(4) themselves operate upon the date of a relevant event to create a liability or other adverse consequence that would fall within s 20 of the Acts Interpretation Act. The better view is that sections 56AC(3) and 56AC(4) merely use the expression ‘excluded individual’ as a shorthand description of an individual who, within the preceding five years, took advantage of the bankruptcy laws or became bankrupt in accordance with s 56AC(1) or has the specified relationship with a company to which a liquidator was appointed or was affected by other specified actions in accordance with s 56AC(2). Any relevant liability or thing suffered is instead created by a subsequent cancellation of a licence or refusal of an application for a licence consequent upon a decision by the respondent that an individual is an excluded individual.(Emphasis added)

  1. [22]
    In contrast to the present case, in which the builder’s licence was cancelled prior to the legislative amendments,[22] in D’Arro there had been no relevant cancellation or refusal of an application for a licence prior to those amendments.[23]That distinction is critical and explains why s 20(2)(c) of the Acts Interpretation Act 1954 did not apply in that case.
  2. [23]
    In addition to the passage set out above, other observations made in D’Arro highlight that distinction. At [31] it is stated:

The application of the amendments to the PEOLA Act would operate retrospectively if they changed the applicant’s licence status as it was at a time before the Act was enacted. For example, the PEOLA Act would operate retrospectively if the QBCC Act as amended entitled the applicant or one of his companies to be regarded as having held a licence in a period before the commencement of the amendments even though in that period the respondent had duly refused an application for the licence or duly cancelled the licence under s 31(1)(e) or s 56AE of the QBCC Act.

Also, at [33]:

It might be said that the statutory description of the applicant as an excluded individual disadvantaged the applicant in the sense that any licence he held might be cancelled and any application for a licence he might make would be refused, but until such an event occurred the disadvantage should not be regarded as an accrued liability or a completed transaction.

  1. [24]
    In D’Arro, given that there was no retrospective operation of the legislative amendments in terms of s 20(2)(c) of the Acts Interpretation Act 1954 (Qld), it followed that the rights applicable to the applicant were those accorded by the law as it existed at the time of the rehearing before the Tribunal.24 In contrast, in the present case the relevant licence was cancelled well before the legislative amendments, thus attracting the operation of s 20(2)(c) of the Acts Interpretation Act.[25]
  2. [25]
    Absent the capacity to rely on the decision in D’Arro, the prospects of success of the application to review appear to be low.[26] That impacts the grounds of appeal, which lean heavily on the perceived merits of the application to review.

Grounds of Appeal

  1. [26]
    In relation to the grounds at paragraph [8](a) above, it was submitted that the Tribunal misdirected itself as to the process and the law.
  2. [27]
    In Ground 1, it is said that the Tribunal erred in finding that the application arose out of the ‘same facts and circumstances’ as the previously withdrawn application, such that leave was required under s 46(3) of the QCAT Act to make the new application. The differences between the respective applications were said to be threefold: the legislative changes, the advice received from the former QBCC Commissioner to the effect that the applicant would be better placed applying for a new licence under the new legislation rather than seeking a review of the decisions not to categorise him as a permitted individual, and an accounting error acted upon in making the decision not to categorise him as a permitted individual on 02 June 2011. The latter was relevant to the question of whether he had taken all relevant steps to avoid the circumstances that gave rise to the relevant event in terms of the then s 56AD(8) of the QBCC Act.
  1. [28]
    However, casting the ‘same facts or circumstances’ in s 46(3) of the QCAT Act so broadly would give the provision very limited scope. As is evident from the Explanatory Note to the Bill, that was not intended:[27]

Clause 46 allows an applicant to withdraw an application or referral with the permission of the tribunal. If an applicant withdraws, the applicant cannot make a further application or referral about the same subject matter without the tribunal’s leave (emphasis added).

An equivalent provision under the VCAT Act has been held to apply where the current application “read as a whole cannot be said to be as a whole the same in substance” as the previous application.[28]

  1. [29]
    It is clear that the points of difference referred to by the applicant do not give rise to an application that is different in substance or one that involves different subject matter from the earlier application.
  2. [30]
    Grounds 13, 16 and 18 are without foundation. They deal with issues relevant to an application to extend time and, in good measure, the applicant’s submissions depend on the assumption that the applicant has good grounds on the merits. There is also some confusion in relation to the applicant’s case. Ground 13 asserts that the Tribunal should have considered all relevant factors in combination, while the related submissions seem to assert that the merits of the case ought to have been considered in isolation. As to the submission that the Tribunal misdirected itself in relation to prejudice (Ground 18),[29] it is clear that the learned Member found that there was no evidence of prejudice to the respondent.[30] The later observations in the decision, referred to by the applicant as resurrecting the issue of prejudice, simply note the general position as to the importance of adherence to time limitations. The importance of such compliance is noted in Coppens v Water Wise Design Pty Ltd, where Thomas J stated:[31]

Each party is aware of the required time limits and the fair approach is to require that limits be complied with unless there is a compelling reason … to the contrary. That is fair for all parties. Compliance with time limits also will lead to disposition of matters in the most efficient and quick way. Compliance with time limits is also consistent with the public interest in finality of litigation.[32]

  1. [31]
    In relation to the grounds at paragraph [8](b) above, it was submitted that there was no evidence to support specified findings[33] or no adequate reasons were given for those findings. In fact, the learned Member gave extensive reasons, including a lengthy consideration of the applicant’s reliance on advice given to him by a third party, which, it was submitted at least partly explained the delay in bringing a fresh application.[34] Clearly, as was open on the available material, the Tribunal was not satisfied that an adequate explanation had been given for the delay. This was a case in which the original application was withdrawn on 05 November 2012 and the fresh application was not filed until 14 April 2016. The Tribunal was entitled to require a compelling explanation for such a delay. While the reasons advanced by the applicant provided some explanation, it is far from clear that they justified a delay of over 3 years or of the many months since the passing of the amending legislation relied upon.[35]
  1. [32]
    In relation to the grounds at paragraph [8](c) and [8](d) above, it was submitted that the Tribunal took account of irrelevant considerations or failed to take account of relevant considerations. The submitted irrelevant considerations involved the impact of the legislative amendments and the issue of prejudice. Both the alleged misdirection in relation to prejudice and the impact of the amending legislation on the present case are addressed above. As to failure to take account of relevant considerations, these were said to be: the strength of the applicant’s case given the legislative amendments, the impecuniosity of the applicant, the explanations given for the delay in bringing the fresh application, the new evidence from the applicant’s accountant, the advice provided by the former QBCC Commissioner, the lack of prejudice to the respondent, and that the original application was filed on time. In fact, these matters were considered by the learned Member and it seems that the applicant’s complaint goes more to the question of the weight to be accorded to them. However, absent a decision that is manifestly unreasonable, the weight to be given to such matters is a matter for the Tribunal Member.[36] No such unreasonableness has been demonstrated.
  2. [33]
    In relation to the grounds at paragraph [8](e) above, it was submitted that there was a failure to provide procedural fairness, as the decision of the Tribunal was based on certain findings without providing the applicant an opportunity to be heard on those matters. Those matters involved issues relevant to any application of this nature, including the length of the delay, the reasons for withdrawing the original application, the purpose of the 28 day time limit, the explanation for the delay in filing the review application, the issue of prejudice, and the learned Member’s conclusion that the cost of filing a fresh application for review would be minimal. In relation to the latter, the learned Member stated that evidence had not been produced showing that the impecuniosity of the applicant prevented him from filing an application for further review until April 2016. It was then simply noted that the filing costs would have been minimal. It remains that the applicant had not produced evidence going to impecuniosity, beyond that which might be inferred by his bankruptcy, from which he was discharged in March 2013, some three years before the fresh review application was filed or how that impacted the delay. The applicant was legally represented and a number of written submissions were filed. This is not a case in which a party has been denied an opportunity to be heard on matters that may potentially be of importance in coming to a decision adverse to it.[37]
  1. [34]
    For the reasons outlined above, in our view no error of law or fact, sufficient for the granting of leave to appeal, has been demonstrated. Accordingly, the application for leave to appeal or appeal is dismissed.

Footnotes

[1]Pursuant to the Queensland Building Services Authority Amendment Act 2013 (Qld) s 4, the Queensland Building Services Authority became the Queensland Building and Construction Commission.

[2]Prior to 2014, the Queensland Building Services Authority Act. The tile of the Act was changed by the Queensland Building Services Amendment Act 2013 (Qld).

[3]To become a ‘permitted individual’ it had to be shown that the individual ‘took all reasonable steps’ to avoid the circumstances that gave rise to the relevant event. Section 56AD has since been repealed. As to transitional arrangements, see the Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld) s 59, which created Schedule 1, Part 11 of the QBCC Act 1991.

[4] Queensland Building and Construction Commission Act 1991 (Qld), s 58(1) (Reprint current from 1 January 2001 – 31 October 2013).

[5]The exclusion is now for 3 years: see Queensland Building and Construction Commission Act 1991 (Qld) s 56AC.

[6]This decision related to the second event being his bankruptcy.

[7]Jensen v QBCC [2017] QCAT 232, [46]-[48].

[8]Professional Engineers and Other Legislation Amendment Act 2014 (Qld) s 60.

[9]Jensen v QBCC [2017] QCAT 232, [115].

[10] Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229, [9].

[11]Jensen v QBCC [2017] QCAT 232, [57]-[59].

[12]QCAT Act 2009 (Qld) s 33(3).

[13] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 74(2)(d); Interpreted in Hoskin v Department of Education (General) [2005] VCAT 2921 (12 September 2015), [32]. See also Davies v Victoria Police (Health and Privacy) [2012] VCAT 1951 (18 December 2012), [24].

[14]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 25.06; Hoskin v Department of Education (General) [2005] VCAT 2921 (12 September 2015), [31]-[32]. As to the equivalent Queensland provision, see the Uniform Civil Procedure Rules 1999 (Qld), r 310.

[15]QCAT Act 2009 (Qld) s 3(b).

[16]Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229, [9].

[17]Support for that view is given in the decision at first instance: Jensen v QBCC [2017] QCAT 232 at [91]

[18] D’Arro v QBCC [2017] QCA 90.

[19]D’Arro v QBCC [2017] QCA 90, [15].

[20]D’Arro v QBCC [2017] QCA 90, [21]-[22].

[21]D’Arro v QBCC [2017] QCA 90, [29] - [30].

[22]The applicant’s licence was cancelled on 1 February 2013, well before the legislative amendments.

[23]On the other hand, it seems that ‘a’ licence, unrelated to those proceedings, had been cancelled, presumably for a term of years: see D’Arro, [38]. The review proceeded in relation to the decision that the applicant was an excluded individual in relation to one only of the four companies and the decision to refuse to categorise him as a permitted individual for the bankruptcy: see D’Arro, [15]. There was concern that if any order of the Tribunal made in favour of the applicant took affect from the date when the respondent’s reviewable decisions were made it might be contended that the Tribunal’s decision rendered ‘ineffective’ the other cancellation. However, it was noted at [38] that the power of the Tribunal to make orders under s 24(2) of the QCAT Act could be used to avoid any unwarranted retrospective effect.

[24] D’Arro v QBCC [2017] QCA 90, [28].

[25]As noted in Paddon v QBCC [2018] QCAT 100, [37]-[39], the legislature could have given the amendments retrospective effect if it was so minded. In that case, the learned Member noted that “it would make the licencing system unstable if builders were to be now able to readily re-open matters from before 2015, many of which were many years old, when witnesses may have become unavailable, or memories may have faded, or documents may have been lost, and prejudice may conceivably readily arise to the QBCC from the delay”.

[26]In relation to merits, in ground 11 reliance is placed on new evidence as to an ‘accounting anomaly’, advice received from a third party and two decisions of the Tribunal that set aside decisions refusing applications to be categorised as permitted individuals. It is not explained how those cases assist the applicant’s case. Nor is any detail provided in relation to the ‘accounting anomaly’. Reference is made to the accounting issue in the decision of the learned Member, where it was also noted that no detail was provided in relation to the alleged discrepancy: Jensen v QBCC [2017] QCAT 232, [53]- [54]. It is evident that reliance on the advice of a third party is intended to explain, in part, the delay in bringing the fresh application.

[27] Explanatory Note, Queensland Civil and Administrative Tribunal Act 2009 (Qld), p40.

[28]Peters v Southern Health and Batten [2002] VCAT 120 (20 February 2002); Davies v Victoria Police (Health and Privacy) [2012] VCAT 1951(18 December 2012), [20].

[29] The applicant referred to the observations made in Coppens v Water Wise Design Pty Ltd [2014] QCATA 309, [11](c).

[30] Jensen v QBCC [2017] QCAT 232, [67]

[31] [2014] QCATA 309, [14].

[32] Citing R v Twindale [2009] QCA 200 (Wilson J).

[33] Jensen v QBCC [2017] QCAT 232, [60].

In particular, that the withdrawal of the original application was a ‘deliberate tactical change’, that the cost of filing a further review application would have been minimal, that it was unreasonable for the applicant to base his decision om the email advice from the former QBCC Commissioner, that there would be prejudice to the respondent, and that there was no compelling explanation for the delay in bringing the fresh application.

[34]Jensen v QBCC [2017] QCAT 232, [85]-[89].

[35] Jensen v QBCC [2017] QCAT 232, [92].

[36] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 (Mason J).

[37]Chandra v QBCC [2014] QCA 335, [68].

Close

Editorial Notes

  • Published Case Name:

    Timothy Peter Jensen v Queensland Building and Construction Commission

  • Shortened Case Name:

    Jensen v Queensland Building and Construction Commission

  • MNC:

    [2019] QCATA 11

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson, Member Deane

  • Date:

    01 Feb 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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